FIFTH SECTION

CASE OF PUSTOVIT v. UKRAINE

(Application no. 34332/03)

JUDGMENT

STRASBOURG

18 November 2010

This judgment is final but it may be subject to editorial revision.

In the case of Pustovit v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
	Mark Villiger, President,
	Isabelle Berro-Lefèvre,
	Ganna Yudkivska, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 19 October 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 34332/03) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Oleksandr Ivanovych Pustovit (“the applicant”), on 2 October 2003.
2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.
3.  On 16 March 2009 the President of the Fifth Section decided to give notice of the application to the Government. In accordance with Protocol no. 14, the application was allocated to a Committee of three Judges.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1941 and lives in the city of Kyiv, Ukraine.
1. First set of proceedings
5.  On 23 August 1996 the applicant instituted proceedings against his former employer, the State Institute for Electric Welding, in the Leningradsky District Court of Kyiv (“the District Court”) challenging his dismissal and claiming payment of salary arrears and compensation for non-pecuniary damage.
6.  In the period from August 1996 to 25 February 1998 the applicant's case was considered by the courts at two levels of jurisdiction.
7.  The last hearing in 1998 was held by the District Court on 25 February 1998. Then the case file was lost. On 31 May 2000 the District Court resumed the proceedings.
8.  On 9 June 2000 the District Court ordered reconstruction of the case file.
9.  On 26 July 2001 the District Court partly allowed the applicant's claims.
10.  On 14 March 2002 the Kyiv City Court of Appeal quashed that judgment and remitted the case to the first-instance court for fresh consideration.
11.  On 17 October 2002 the District Court partly allowed the applicant's claims.
12.  On 23 January 2003 the Kyiv City Court of Appeal quashed the judgment of 17 October 2002 and found against the applicant.
13.  On 15 April 2003 the Supreme Court gave a final decision in the applicant's case by which it dismissed his appeal in cassation.
14.  The applicant tried to review his case under extraordinary procedure, but his efforts were to no avail.
2. Second set of proceedings
15.  In March 2005 the applicant instituted proceedings against the President of the State Institute for Electric Welding in the Svyatoshin District Court of Kyiv challenging the orders issued by his former employer under which he had been dismissed. On 31 March 2005 the court declined to consider his claims on the ground that the same claim had already been considered by the domestic courts and there had been a final decision in that respect.
16.  On 12 May 2005 the Kyiv City Court of Appeal upheld this ruling.
17.  According to the applicant's submissions, in June 2005 he lodged an appeal in cassation against the rulings of 31 March 2005 and 12 May 2005 with the Supreme Court. The applicant did not inform this Court about the outcome of the cassation proceedings.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
18.  The applicant complained that the length of the first set of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
19.  The Government contested that argument.
20.  The period to be taken into consideration began only on 11 September 1997, when the recognition by Ukraine of the right of individual petition took effect. However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings on that date which had by then already lasted some twelve months since 23 August 1996. The period in question ended on 15 April 2003. It thus lasted about five years and seven months for three levels of jurisdiction.
A.  Admissibility
21.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
22.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). The Court reiterates that special diligence is necessary in employment disputes (see Ruotolo v. Italy, 27 February 1992, § 17, Series A no. 230‑D).
23.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Frydlender, and Ruotolo, cited above).
24.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.
There has accordingly been a breach of Article 6 § 1.
II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
25.  The applicant further complained under Articles 6 § 1 and 13 of the Convention about unfairness of the proceedings and that his claim lodged in 2005 had not been considered. He further relied on Article 14 and Article 1 of Protocol No. 1, referring to the same issues.
26.  Having carefully examined the applicant's submissions in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.
27.  It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
28.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A.  Damage
29.  The applicant claimed 414,750 Ukrainian hryvnias (UAH, about 34,600 euros) in respect of pecuniary damage and 100,000 euros (EUR) in respect of non-pecuniary damage.
30.  The Government contested these claims.
31.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, ruling on an equitable basis, it awards the applicant EUR 800 in respect of non-pecuniary damage.
B.  Costs and expenses
32.  The applicant also claimed UAH 223.21 (about EUR 19) for the postal expenses and copying documents. He further claimed UAH 493 (about EUR 41) plus UAH 1,162.44 (EUR 97) for translation services.
33.  The Government submitted that the applicant failed to show that all expenses were incurred in connection with the proceedings before this Court. In respect to the claims of UAH 223.21 and UAH 493, the Government left the matter to the Court's discretion. They did not comment on the claim of UAH 1,162.44.
34.  According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 100 under this head.
C.  Default interest
35.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Declares the complaint concerning the excessive length of the first set of the proceedings admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 800 (eight hundred euros) in respect of non-pecuniary damage as well as EUR 100 (one hundred euros) for costs and expenses, plus any tax that may be chargeable, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 18 November 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stephen Phillips	Mark Villiger	
	Deputy Registrar	President